CHAPTER 44:63:02
FORM AND CONTENT OF WAIVER APPLICATIONS
Section
44:63:02:01 Case number.
44:63:02:02 Order of documents submitted.
44:63:02:03 Letter from facility.
44:63:02:04 Information required from facility.
44:63:02:05 Data sheet DS-3035.
44:63:02:06 J-1 waiver affidavit.
44:63:02:07 Federal forms.
44:63:02:08 Eligibility to be licensed to practice.
44:63:02:09 J-1 physician curriculum vitae.
44:63:02:10 Employment contract.
44:63:02:11 Contractual obligation to home country.
44:63:02:12 Repealed.
44:63:02:13 Medical licensure.
44:63:02:14 Evidence of shortage designation status.
44:63:02:15 J-1 physician statement.
44:63:02:16 Out of status explanation, when applicable.
44:63:02:17 Form G28, when applicable.
44:63:02:18 I-94 entry and departure cards.
44:63:02:19 Examinations required by USCIS.
44:63:02:20 Repealed.
44:63:02:02. Order of documents submitted. Each application shall consist of documents submitted in the following order:
(1) Data sheet DS-3035;
(2) Employment contract;
(3) J-1 waiver affidavit;
(4) Federal forms (IAP-66//DS2019);
(5) Letter from facility;
(6) Evidence of shortage designation status;
(7) J-1 physician statement;
(8) J-1 physician curriculum vitae;
(9) Out of status explanation, when applicable;
(10) Form G28, when applicable;
(11) I-94 entry and departure cards;
(12) Contractual obligation to home country;
(13) Appendix 1 Information required from facility;
(14) Appendix 2 Examinations required by USCIS;
(15) Appendix 3 Eligibility to be licensed to practice; and
(16) Appendix 4 Medical licensure.
Source: 28 SDR 47, effective October 4, 2001; 31 SDR 214, effective July 4, 2005; 37 SDR 235, effective June 27, 2011; 45 SDR 45, effective October 8, 2018.
General Authority: SDCL 36-2-22.
Law Implemented: SDCL 36-2-21, 36-2-22.
44:63:02:03. Letter from facility. A letter signed by the employing facility administrator shall comprise part of the application. The letter shall request the department to act as an interested governmental agency in recommending waiver of the home country residency requirement for the named J-1 physician. The letter shall also describe the employing facility, including organizational structure, services offered, and service area.
Source: 28 SDR 47, effective October 4, 2001; 37 SDR 235, effective June 27, 2011.
General Authority: SDCL 36-2-22.
Law Implemented: SDCL 36-2-21, 36-2-22.
44:63:02:04. Information required from facility. Every application shall include a series of statements, all clearly labeled under separate headings describing the following:
(1) Recruitment efforts. The employing facility shall summarize and provide copies of advertisements, any agreements with placement services, and other evidence documenting the extent to which the employing facility has been unsuccessful in recruiting qualified U.S. physicians. In the absence of such evidence, a narrative which sets forth in convincing detail such unsuccessful recruitment efforts shall be included;
(2) Summary of J-1 physician's expected practice arrangement. The employing facility shall describe:
(a) The J-1 physician's proposed responsibilities;
(b) How the J-1 physician's employment will satisfy important unmet needs of the shortage area; and
(c) How the J-1 physician will satisfy his or her practice obligation in terms of practice location, practice hours, and responsibility for taking calls;
(3) Equivalency of J-1 compensation. The employing facility shall state that the J-1 physician's salary or other forms of financial support is at a level equivalent to that of other physicians in the region, taking into account such variables as training, experience, and specialty involved. The statement should itemize the guaranteed three-year base salary, benefits, insurance, and amount of leave;
(4) Retention of J-1 physician beyond the 3-year obligation. The employing facility shall state its plans for retaining the J-1 physician beyond the three-year obligation period;
(5) Effect of waiver denial. The employing facility shall state the effect on the shortage area population to be served if the waiver is denied; and
(6) Service to the underserved. The employing facility shall describe the shortage area to be served by the J-1 physician and state that the facility accepts Medicare/Medicaid patients as well as medically indigent patients.
Source: 28 SDR 47, effective October 4, 2001; 37 SDR 235, effective June 27, 2011.
General Authority: SDCL 36-2-22.
Law Implemented: SDCL 36-2-21, 36-2-22.
44:63:02:06. J-1 waiver affidavit. Each application shall include an affidavit signed by the J-1 physician. The department shall furnish each J-1 physician a copy of an unsigned affidavit upon request by the employing facility.
Source: 28 SDR 47, effective October 4, 2001.
General Authority:SDCL 36-2-22.
44:63:02:07. Federal forms. A copy of the IAP-66//DS2019 (certificate of eligibility for exchange visitor J-1 status) for each year the J-1 physician was in J-1 status.
Source: 28 SDR 47, effective October 4, 2001; 31 SDR 214, effective July 4, 2005; 37 SDR 235, effective June 27, 2011.
General Authority: SDCL 36-2-22.
Law Implemented: SDCL 36-2-21, 36-2-22.
44:63:02:08. Eligibility to be licensed to practice. A copy of the J-1 physician's South Dakota medical license or proof of ability to be licensed in the state of South Dakota by the beginning of the employment contract period shall be included in the application.
Source: 28 SDR 47, effective October 4, 2001.
General Authority:SDCL 36-2-22.
44:63:02:10. Employment contract. Each application shall include a complete copy of the minimum three-year employment contract between the J-1 physician and the employing facility. The J-1 physician and the employing facility shall sign and date the contract. The employment contract shall include the following:
(1) Name and address of the employing facility;
(2) Name and address of the J-1 physician;
(3) The specific shortage area in which the J-1 physician will practice;
(4) That the J-1 physician will practice full-time;
(5) That the J-1 physician will practice a minimum of 64 hours per four week period direct patient care within the shortage area identified in the contract;
(6) That the J-1 physician may provide up to 96 additional hours per four week period under any of the following conditions:
(a) Providing care to patients in either the hospital inpatient or outpatient department if the hospital is shown to serve a significant portion of shortage area residents;
(b) Clinical outreach to underserved populations residing in a shortage area, whether directly in person or by electronic means. If by electronic means, the remote site must be located within a shortage area. If provided in person, the setting must be located in a shortage area;
(c) Public health services if approved by the department; or
(d) Direct patient care in a facility or setting that serves the underserved, as evidenced by the posting of a notice of a discounted fee program as an adopted policy of the facility. The discounted fee program shall meet or exceed the following minimum standards: 100% of the federal poverty level (FPL) or less = 100% discount; 101% to 125% of the FPL, inclusive, = 80% discount; 126% to 150% of the FPL, inclusive, = 60% discount; 151% to 175% of the FPL, inclusive, = 40% discount; and 176% to 200% of the FPL, inclusive, = 20% discount;
(7) That the J-1 physician will begin employment at such facility within 90 days of receiving the waiver as well as continue to work at the facility for a total of not less than three years;
(8) That the J-1 physician will accept assignment under the Social Security Act § 1842(b)(3)(ii) as full payment for all services for which payment may be made under part B of Title XVIII of such act (Medicare);
(9) A sentence describing what field of medicine the J-1 physician will practice;
(10) Language requiring that the contract be terminated only for cause and cannot be terminated by mutual agreement until after expiration of the required three-year period of service;
(11) No noncompete clause or provision that purports to limit the J-1 physician's ability to remain in the area upon completion of the contract;
(12) An attachment provided by the department titled "J-1 Employment Contract Policy of the South Dakota Department of Health"; and
(13) A statement by the foreign medical graduate that the graduate agrees to meet the requirements set forth in section 214(l) of the Immigration and Nationality Act in compliance with 22 CFR 41.63(e)(3)(iii).
Source: 28 SDR 47, effective October 4, 2001; 29 SDR 107, effective February 3, 2003; 37 SDR 235, effective June 27, 2011; 45 SDR 45, effective October 8, 2018.
General Authority: SDCL 36-2-22.
Law Implemented: SDCL 36-2-21, 36-2-22.
44:63:02:11. Contractual obligation to home country. Each application shall contain a statement, signed by the J-1 physician, as to whether the J-1 physician is contractually obligated to his or her home country. If so obligated, a copy of a letter from the home country stating it has no objection to the J-1 physician remaining in the U.S. shall be attached to the statement.
Source: 28 SDR 47, effective October 4, 2001.
General Authority:SDCL 36-2-22.
44:63:02:12. Permanent residence. Repealed.
Source: 28 SDR 47, effective October 4, 2001; 45 SDR 45, effective October 8, 2018.
44:63:02:13. Medical licensure. Each application shall include a statement signed by the J-1 physician stating that all the J-1 physician's medical licenses are in good standing and that he or she is not subject to any criminal investigation or proceedings by any medical licensing authority.
Source: 28 SDR 47, effective October 4, 2001.
General Authority:SDCL 36-2-22.
44:63:02:14. Evidence of shortage designation status. Each application shall include evidence that the service area is designated as a health professional shortage area or a medically underserved area or both.
Source: 37 SDR 235, effective June 27, 2011.
General Authority: SDCL 36-2-22.
Law Implemented: SDCL 36-2-21, 36-2-22.
44:63:02:15. J-1 physician statement. A statement from the physician regarding the reasons for not wishing to fulfill the two-year home country residence requirement to which the physician agreed at the time of acceptance of exchange visitor status shall be included in the application.
Source: 37 SDR 235, effective June 27, 2011.
General Authority: SDCL 36-2-22.
Law Implemented: SDCL 36-2-21, 36-2-22.
44:63:02:16. Out of status explanation, when applicable. An explanation shall be included in the application if the physician spent any period of time in some other visa status, out of status, or outside of the United States.
Source: 37 SDR 235, effective June 27, 2011.
General Authority: SDCL 36-2-22.
Law Implemented: SDCL 36-2-21, 36-2-22.
44:63:02:17. Form G28, when applicable. A form G-28 shall be included in the application from an attorney or accredited representative. A letterhead from a law office may be used as a substitute for form G-28 if an attorney represents the applicant.
Source: 37 SDR 235, effective June 27, 2011.
General Authority: SDCL 36-2-22.
Law Implemented: SDCL 36-2-21, 36-2-22.
44:63:02:20. Letters of recommendation. Repealed.
Source: 37 SDR 235, effective June 27, 2011; 45 SDR 45, effective October 8, 2018.
